In an increasingly globalized world, many individuals stretch their lives across borders through property ownership, business ventures, or family ties. This international lifestyle, while exciting and rewarding, brings along unique challenges, especially when it comes to estate planning. One such challenge is ensuring that your last wishes are respected and legally enforceable in multiple jurisdictions.
The Hague Conference: The Beginning of An Idea
In 1961, the Hague Conference on Private International Law (HCCH) made its debut attempting to tackle issues relating to succession law and the administration of the estate of the deceased, by making what became known as the HCCH 1961 Form of Wills Convention, making it possible to improve the legal certainty of wills, by designating, among a set of laws, the law of the State that governs the form of the testamentary disposition.
Under this Convention, it was established that a testamentary disposition would be valid if its form complies with the internal law of either:
● The place where the testator made it; or
● A nationality possessed by the testator; or
● A place in which the testator had their domicile; or
● The place in which the testator had their habitual residence; or
● Concerning immovable property, the place where the property is situated.
The 1973 Washington Convention: The Creation of International Wills
Although the HCCH 1961 Form of Wills Convention helped interpret the validity of wills that had already been made, according to the conditions established by the Convention along with the circumstances surrounding the testator, it did not yet quite create a will that would compress the testator’s final wishes in one document, which then brought about issues for owners of assets across different jurisdictions.
It was not until years later, with the 1973 Washington Convention, that the pressing issue of conflicting jurisdictions unraveled the need for a uniform legal document, that would allow testators to make sure their wishes would be safeguarded no matter where, thus the creation of international wills.
According to the 1973 Washington Convention, which was endorsed by International Institute for the Unification of Private Law (UNIDROIT), in order for a will to be considered an international will, it must follow the requirements under articles of provisions 2 to 5 of the Convention. These include:
Article 2
This law shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.
Article 3
(1) The will shall be made in writing.
(2) It need not be written by the testator himself.
(3) It may be written in any language, by hand or by any other means.
Article 4
(1) The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof.
(2) The testator need not inform the witnesses, or the authorized person, of the contents of the will.
Article 5
(1) In the presence of the witnesses and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.
(2) When the testator is unable to sign, he shall indicate the reason therefor to the authorized person who shall make note of this on the will. Moreover, the testator may be authorized by the law under which the authorized person was designated to direct another person to sign on his behalf.
(3) The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.
Even though the Washington Convention made significant progress with regards to a written document that is internationally recognized as valid, it is important to note that its main concern is with the formal validity of international wills and ensuring their recognition across borders.
Apart from the above-stated formal requirements of international wills, there are other peculiarities that must be observed to make sure it complies with the rules of the Convention. In this sense, it is advised to seek legal guidance in testamentary matters, in order to make sure your will is duly acknowledged as an international will, so that your final wishes are preserved.
How are international wills executed, as part of a soft law convention?
Similar to other non-binding legal instruments in contract law, the UNIDROIT principles are only binding insofar as the parties voluntarily choose to adopt them. In cases where the parties do not explicitly accept them, courts and arbitral tribunals will apply the principles (if at all), only if they find them to be compelling based on their inherent merits.
The State Parties to this Convention are:
Australia |
Belgium |
Bosnia-Herzegovina |
Canada |
Croatia |
Cyprus |
Ecuador |
France |
Holy See |
Iran |
Italy |
Laos |
Libya |
Niger |
Portugal |
Russian Federation |
Sierra Leone |
Slovenia |
United Kingdom |
United States of America |
The People’s Republic of China |
Czech Republic |
Slovakia |
The European Succession Certificate
The European Succession Certificate (ESC) is a legal tool introduced by the European Union which intended to simplify the process of proving a person’s rights in cross-border inheritance cases within EU member states. It allows heirs, legatees, executors, and administrators to easily prove their status and rights to a deceased person's estate in any EU country, without needing to validate foreign documents.
As opposed to focusing on the formalities of wills and concerns regarding their legal acceptance, such as the 1973 Washington Convention, the ESC was designed to help heirs and executors prove their status and rights to inherit a deceased person’s estate in the EU.
The ESC came into force officially on the 17th of August of 2015 and, therefore, applies to the succession of people that were deceased thereafter.
The European Succession Certificate can only be issued in respect of succession matters with international merit. That is, essentially, when one has established significant contacts or straight connections across more than one sovereign State.
Final Considerations
In summary, while the 1961 HCCH Form of Wills Convention established provisions for the distribution and administration of estates, the 1973 Washington Convention was created to make the process of creating a will internationally simple and standardized, and the European Succession Certificate facilitates inheritance rights validation across EU member-states.
Drafting and executing international wills, or even managing inheritance rights within the EU, can be a complex and daunting challenge. At FiO, we are dedicated to guiding our clients through this intricate process, ensuring that their rights are fully protected and that their estate is handled with the utmost care and efficiency.
Whether our clients are dealing with cross-border succession issues, navigating the intricacies of the European Succession Certificate, or simply seeking clarity on international inheritance laws, our expert team is here to provide our clients with tailored legal solutions every step of the way.
By Victória Costa
#FiOLegal #Succession Law #Inheritance Rights #International Wills #Legal assistance #Portugal #Lisbon #Protection of Assets #UNIDROIT
